CRI/A/60/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

DAVID
LELINGOANA

V Appellant

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 5th day of November,
1982.

The
appellant was charged before the subordinate court held at Qache's
Nek facing a multitude of thirty-five (35) counts of theft
by false
pretences. He pleaded not guilty

but was,
at the end of the day, found guilty on all of them

and
sentenced as follows :

1. "Counts
   1-15 one year imprisonment each count. To run concurrently."

   
   

2. "The
   remaining counts (i.e. from 16 - 35) one year imprisonment on each
   count, to run concurrently."

   
   

Half
these sentences was suspended for a period of three years on certain
conditions.

The acts
complained of in this matter were all committed during the period 1st
April 1981 to 29th May 1981 it being commonly alleged
that the
appellant misrepresented to the several persons mentioned in the
respective counts that he was a representative of the
Principal Chief
of Qacha's Nek (P.W.2) and had been authorised by him to impose and
receive fines of cash and for small stock from
persons who had failed

2

to remove
their animals from certain reserved grazing area.

The
Principal Chief of Qacha's Nek gave evidence and denied that he ever
authorised the appellant to act, as he did. He said : "I
never
met him (appellant) during April and March 1981. I gave him no
orders."

Mr. Moeti
Letseka, an officer in the Department of Agriculture, Qacha's Nek
gave evidence to the effect that the penalties or fines
to be imposed
in the circumstances described above are fifty lisente (50L.) per
head for small stock. He never heard of a situation
where a man
involved in grazing the pastures pays fines of animals. He, the
witness assists chiefs in this work. I will go further
and say that
he finds support from Legal Notice No. 39 of 1980: Range Management
and Grazing Control Regulations published in Gazette
No. 36 of 10th
October, 1980 (Supplement No. 4). Section 6(3) in part :

"S.
6(3)

The owner
or possessor of stock found grazing in contravention of Leboella
restrictions shall be liable to a fine of MO.50 for each
head of
large

3

(some as
much as M70.00). It was quite obvious to me that he acted in concert
with the men who did the actual questioning because
whenever an
argument immediately followed, (as it invariably happened), appellant
would always make his appearance and tell his
subjects that they must
do as they were told as he was acting on the authority of the
Principal Chief. He used his influence and
that of his senior chief
in order to mild his people of their possessions. In one or two
instances the animals taken as a fine
were slaughtered and roasted!
To demonstrate the appellant's common purpose with his men Khataeo
Thonkha (P.W.11) says: "When
he arrived, chief (accused) asked
Ranketsi (one of his henchmen) whether they made any progress. They
said there was opposition
so that there was no progress. The chief
talked to our Headman Khahliso and said: 'talk well to these
messengers of mine,' he meant
Ranketsi and Khoanyane. We were
satisfied when the chief talked, he even said the order was from the
Principal Chief Makotoko Theko
Makhaola."

When he
realised that his despicable game had been seen for what it was, he
handed over to major Chaka (P.W.7) a sum of M1,270.00.
In my view
this was closing the stables after the damage is done.

I have
carefully read the record of the case and it is very difficult to
make out which counts have been proved and which have not;
perhaps
that is the reason for the strange global sentences imposed by the
learned magistrate. Public Prosecutors must be encouraged
to say at
least in respect of which count(s) a particular witness is being led
in evidence. This method was not followed and the
result is that no
evidence was led in respect of the following counts : 5, 6, 7, 8, 13,
16", 18, 19, 29, 30, 31, 32, 33, 34
and I found count 35 rather
vague and embarrassing since it speaks of "sundry unspecified

4

persons
who were cheated of monies all amounting to M275." Although the
appellant was legally represented there was no voice
of protest
against such a charge nor were particulars requested to clerify the
position before the accused pleaded. There had been
an objection but
it related to something different namely that the charge sheet was
now different as it contained more counts.
No self-respecting court
can allow a charge of this nature to stand especially if there is no
evidence sufficiently clearifying
it.

In my
view, the conviction on counts 1, 2, 3, 4, 9, 10, 11, 12, 14, 15, 17,
20, 21, 22, 23, 24, 25, 26, 27, 28 is confirmed, but
the sentence
imposed by the learned magistrate is set aside. There was an appeal
against sentence on the ground that it was excessive.
In my view, it
was extremely lenient. The appellant is a chief. He has abused his
privileged position - a position held in reverence
or high esteem by
the Basotho people. The Ministry dealing with Chieftainship Affairs
is still going to take disciplinary action
against him. In
consideration sentence also this Court cannot close its eyes to the
fact that the matter has been before the courts
since early this
year, and the long period which has elapsed since will have a
profound effect on the sentence to be imposed. (See
Pieter Makoala v
Regina, 1963-66 H.C.T.L.R. 64 at pp. 65D - 66A). The humiliation
already being suffered by the appearance of the
appellant in various
courts in the eyes of his subjects who once loved and trusted him can
be described and felt by nobody else
except himself. However, he
cannot be let off scotfree. Otherwise the law, in our community will
loose respect. Those who transgress
the law must be punished although
the form of punishment may take different forms depending on the
particular circumstances of
each case and the personal circumstances
of each individual.

5

But all
are equal before the law.

The
sentence on counts 1, 2, 3, 4, 9, 10, 11, 12, 14, 15, 17, 20, 21, 22,
23, 24, 26, 27 and 28 is one year each to run concurrently,
the whole
of which is suspended for a period of two years on condition that
during the period of the said suspension he is not
convicted of an
offence involving dishonesty.

The
sentence on counts 3 and 25 is a period of two years1 imprisonment on
each count. Half the sentence is suspended for a period
of two (2)
years on condition that during the period of the said suspension he
is not convicted of an offence involving dishonesty.
I single these
two counts because he extracted M65.00 and M70 from Seotsa Sethuntsa
(P.W.16) and Tsabo Mangange (P.W.25) respectively.
Very distressing
indeed when remembers the economic circumstances of the complainants.

This was
not a particularly an interesting record to read. It was too
depressing. The Registrar is requested to forward a copy of
this
Judgment to the Ministry of Chieftainship Affairs.

I wish to
express my sincere thanks to both counsel for the thorough manner in
which they presented their arguments. They certainly
made the task of
this Court much easier in preparation of this Judgment.

JUDGE

5th
November, 1982.

For
Appellant : Adv. Makhene

For
Respondent : Adv. Peete,